BURGESS, J.
This is an action to foreclose a deed of trust upon certain lands in Morgan county, executed by defendants Piersol to William A. Lattimer on the 1st day of April, 1893, to secure the payment to Lattimer of a certain promissory note therein described. The petition, after alleging the execution of the deed of trust by defendant John C. Piersol and Lue H. Piersol, his wife, and describing the lands, proceeds as follows: "Plaintiff further states that, by mistake or oversight in the scrivener or the grantors in said instrument, the name of the trustee was not inserted, but that said conveyance was made in trust to secure the payment of certain indebtedness on the part of the said John C. Piersol to one William A. Lattimer, the party of the third part, the beneficiary in said deed of trust; that said indebtedness is evidenced by a certain promissory note dated April 1, 1893, for the sum of $8,000, due five years after date thereof, together with interest thereon from date at the rate of seven per cent. per annum, which interest shall be due and payable annually, and, if not so paid when due, to become as principal, and bear the same rate of interest; that said deed of trust and said note are of even date, both being dated April 1, 1893, and both are filed herewith, and marked, respectively, `A' and `B'; that said deed of trust was filed for record in the office of the recorder of deeds of Morgan county, Mo., on the 11th day of May, 1893, and was recorded in Book 10, pp. 265 to 268, of the records of said county. Plaintiff further states that said deed of trust contains the following covenants, to wit: `Now, therefore, if the said party of the first part, or any one for them, shall well and truly pay off and discharge the debt and interest expressed in said note, and every part thereof, when the same becomes due and payable, according to the true tenor, date, and effect of said note, then this deed shall be void, and the property hereinbefore conveyed shall be released at the costs of the said party of the first part; but should the said parties fail or refuse to pay the said debt or the said interest, or any part thereof, when the same or any part thereof shall become due and payable according to the true tenor, date, and effect of said note, then the whole shall become due and payable, and this deed shall remain in force.' Plaintiff further states that said note was assigned, transferred, and delivered, for value received, and before due, by indorsement, to William H. Marquess, executor of William Sausser, deceased, and the said William A. Lattimer waived notice of protest for nonpayment in writing, over his signature, on the back of said note. Plaintiff further states that William Sausser departed this life on or about ____ day of ____, 189_; that the said William Sausser died testate; that William H. Marquess was nominated and duly qualified as the executor of the estate of the said William Sausser, deceased; that this plaintiff, the board of trustees of Westminster College, is the sole legatee of William Sausser, deceased, by his last will and testament; that said note of $8,000 was by the said William H. Marquess, executor of the said William Sausser, deceased, transferred by indorsement and delivered to this plaintiff, the board of trustees of Westminster College, as sole legatee under said will, and this plaintiff is now the legal holder and owner of said note and said deed of trust on said lands securing the payment of same. Plaintiff further states that the interest to April 1, 1894, in the sum of $560, was paid on the 13th day of June, 1894, together with $6.65 compound interest accrued thereon to that date, and that the interest for the year ending April 1, 1895, in the sum of $560, was paid on the 9th day of November, 1895, together with the sum of $22.45, compound interest on said debt, accrued thereon, but that default has been made in the payment of interest on said note of $8,000, due, according
to the tenor and effect of said note, on the 1st day of April, 1896; that default has likewise been made in the payment of the interest due on said note April 1, 1897; and that thereupon this plaintiff has elected to deem the whole principal sum, as shown by said note, to become immediately due and payable, whereby the said John C. Piersol and the said William A. Lattimer are now justly indebted to this plaintiff, the board of trustees of Westminster College, in the sum of $8,000, together with interest thereon at the rate of seven per cent. per annum, compounded annually, from the 1st day of April, 1895. Plaintiff further states that the defendant W. B. A. McNutt has or claims to have some interest in or lien upon the premises described in said deed of trust, by being the beneficiary in an incumbrance junior to that now held by the plaintiff, wherefore the said W. B. A. McNutt is hereby made a defendant herein, that he may have a legal notice of these proceedings, and answer herein if he shall so desire. Plaintiff further states that the defendant Randolph Fry is in possession of said premises under a conveyance from John C. Piersol and wife, made, executed, and delivered after the execution of the deed of trust filed in this cause; that he claims to be the owner of the equity of redemption therein; and that he bought with knowledge of and subject to said deed of trust, and he is hereby made a party to this action, that he may answer herein, and that his rights, if any he may have, may be adjudicated. Wherefore plaintiff prays for judgment on said note against the said John C. Piersol and William A. Lattimer for said sum of $8,000, and interest thereon at the rate of seven per cent. per annum from the 1st day of April, 1895, to the rendition of judgment. And plaintiff further prays for a decree against the defendants John C. Piersol and Lue H. Piersol, his wife, William A. Lattimer, Randolph Fry, and W. B. A. McNutt, and each of them, and all persons claiming under them and either of them, that they be foreclosed of all interest, lien, and equity of redemption in the premises mentioned and described in said deed of trust; that said premises be sold, and the proceeds thereof applied: First, to the payment of the costs and expenses of this action; second, to the payment of the principal and interest due on said note, — and that the defendants John C. Piersol and William A. Lattimer be adjudged to pay any deficiency that may remain after applying to the payment of said note and the costs thereon all of said moneys applicable thereto; and for such other and further relief as to the court shall seem meet and just in the premises."
Defendant Fry filed a separate answer, the material parts of which are as follows: "This defendant, further answering, and for a complete defense to plaintiff's action, states that on the ____ day of February, 1893, this defendant and his co-defendant John C. Piersol made and entered into a contract in writing to the following effect, viz.: In consideration that this defendant would convey to said Piersol certain lands in the counties of Monroe and Gentry, in the state of Missouri, of the agreed value of four thousand dollars, and of the payment in cash of one thousand dollars, and the further payment of three thousand dollars, payable as hereinafter stated, the said John C. Piersol, being the owner thereof, agreed to convey by warranty deed, duly executed by himself and wife, the following described real estate, situate in Morgan county, Missouri, to wit: The northwest quarter, and that part of the southwest quarter north of the state road, of section four; the north half, and the...
